You could lose your immigrant visa if you do not pursue your case (Part 1)

Dear Atty. Gurfinkel,

Years ago, I was petitioned by my US citizen father. The priority date is current, but our family has not received any papers in connection with my visa.

During the many years that I was waiting for the visa, both my father and I moved, and we are no longer living at the addresses we were at when the petition was filed.

I am very anxious to go to America, and I am wondering what is going on with my case.

Very truly yours,

F.T.

Dear F.T.,

An immigrant visa is like a seat on an airplane: although you may have made your “reservation” for the seat, if you do not claim that seat within a specific period of time, the airline will cancel your reservation, and give the seat to the next person in line. The same is true for immigrant visas: Once a visa is available to a person (i.e. priority date is current, and the Embassy or NVC has sent notification), the person must come forward and pursue his visa application. If he does not do so, the NVC or Embassy could take steps to terminate the visa application/registration. In that case, you lose your priority date, and have to start all over again, meaning, filing a new petition, with a new priority date, and go back to the end of the line.

There are a number of ways by which a person could have his visa application/registration terminated:

1. The person did not “apply” for his immigrant visa within one year after being notified by NVC of visa availability, and or respond to NVC’s mailings.

2. If the Consul asks the applicant, at their immigrant visa interview, to present additional evidence or documents to prove eligibility for a visa, but the person fails to submit that evidence within one year of the Consul’s request, the visa application/registration could also be terminated. For example, a person may go to the US Embassy for an interview, and the Consul gives them a form (called an MNL-IV-22) requesting that, under Section 221(g), the person bring additional documents, such as a birth certificate, marriage contract, proof of family relationship, etc. If the person fails to submit that additional evidence requested by the Consul within one year, the visa application/registration could be cancelled or terminated.

3. Note: The one-year period (in which to pursue the visa and/or provide additional evidence) stops (or the person could still have a chance) if the person, at any time within that one-year period, is able to convince the Consular Officer that his initial failure to appear for an interview “was beyond his or her control”. Even after that initial one-year period has ended, if the Applicant is able to persuade the Consular Officer within the next year that the failure to appear within the first year was beyond the Alien’s control, the Applicant could possibly be entitled to another appointment. (So, a person could, potentially, have up to two years to salvage their case.)

In a future article, I will discuss other ways by which a person’s immigrant visa registration could be terminated.

Therefore, if a person’s priority date on their petition has been current for a long time, but they (or their relatives in America) have not received anything from the Embassy and/or National Visa Center, they should consider taking steps to make sure that their visa application or petition is still “alive”. In such a case, people may wish to seek the advice or assistance of a reputable attorney, who can analyze the situation, find out the current status of the case, and, hopefully, salvage the situation before it’s too late. The Embassy will not hold your visa application indefinitely once your priority date becomes current. Either you are interested in the visa, or you are not. Remember, there are plenty of “stand by” passengers in line for visas, who are definitely interested in pursuing their own visa applications.

In a future article, I will discuss more advantages and disadvantages of citizenship.

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WEBSITE: www.gurfinkel.com

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